Jason Michael Gibson v. State of Indiana , 111 N.E.3d 247 ( 2018 )

FILED
Oct 02 2018, 8:54 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Amy D. Griner Curtis T. Hill, Jr.
Mishawaka, Indiana Attorney General of Indiana
Ellen H. Meilaender
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jason Michael Gibson, October 2, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-743
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jane Woodward
Appellee-Plaintiff. Miller, Judge
Trial Court Cause No.
71D01-1706-F3-37
Najam, Judge.
Statement of the Case
[1] Jason Michael Gibson appeals his convictions for robbery, as a Level 3 felony,
and conspiracy to commit robbery, as a Level 3 felony, following a jury trial.
He presents the following issues for our review:
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1. Whether the trial court committed fundamental error
when it entered judgment of conviction for conspiracy to
commit robbery.
2. Whether the trial court abused its discretion when it
admitted into evidence his inculpatory statements to law
enforcement.
3. Whether the trial court abused its discretion when it
admitted the testimony of an eight-year-old witness.
4. Whether his convictions violate Indiana’s prohibition
against double jeopardy.
5. Whether the trial court abused its discretion when it
sentenced him.
[2] We affirm.
Facts and Procedural History
[3] On May 29, 2017, Tyshawn Owens was babysitting Talanda Peck’s five
children at her home in South Bend. Peck was gone overnight, and Owens
invited his friends Gibson and Shayla Brazier to spend the night. After Gibson
and Brazier left on the morning of May 30, they met with Deangelo Dove and
Deziara Parker and discussed robbing Peck’s house.
[4] At approximately 11:00 a.m. that morning, Dove entered Peck’s house, and
within a few minutes someone disabled a video surveillance system at the
house. Two of Peck’s daughters, including T.O., were in Peck’s bedroom when
Dove, who had a gun, found them and tied them up using duct tape. At some
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point, one of the perpetrators used duct tape to tie up Owens. Gibson, Dove,
and Parker then stole from the home televisions, a computer, an iPad, a cell
phone, a vacuum cleaner, and tennis shoes. A neighbor, Michael Griffin, saw a
blue Buick with front-end damage parked in Peck’s backyard during the time of
the robbery. And Griffin saw that car drive away shortly before Peck’s
daughters and Owens, who were able to get out of the duct tape bindings, came
to his house and told him they had just been robbed. At some point, T.O. went
to a nearby store and called police to report the robbery.
[5] Later that evening, Officer Scott Gutierrez with the South Bend Police
Department was on patrol when he saw a blue Buick with front-end damage,
which he knew matched the description of the car used in the robbery earlier
that day. Officer Gutierrez followed the car until it stopped at a gas station,
where he initiated a traffic stop. He questioned the female driver, Caprice
Guidan, and the passenger, Parker, and he conducted a search of the car.
Officer Gutierrez found an ATM card belonging to Dove in the back passenger
seat.
[6] In the meantime, Officer James Taylor questioned Gibson at the police station.1
Gibson told Officer Taylor that he and Dove had made a plan to rob Peck’s
1
The record does not reveal how officers learned that Gibson was involved in the robbery, but it appears
that Owens told officers of Gibson’s involvement.
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house, that Dove had committed the robbery, and that the stolen items could be
found at Guidan’s house. Officers later found several of the stolen items there.
[7] On June 5, 2017, the State charged Gibson with three counts of robbery, as
Level 3 felonies. On December 15, the State amended the information to add a
fourth count, conspiracy to commit robbery, as a Level 3 felony. And in
January 2018, the State moved to amend the three robbery charges “to allege
that [Gibson] Aided, Induced, or Caused another person in committing [sic] the
robberies against Tyshawn Owens and the two minor children” on May 30,
2017. Appellant’s App. Vol. 2 at 39. The trial court permitted that amendment
over Gibson’s objection.
[8] At trial, the court instructed the jury on the elements of the four counts against
Gibson: three counts of robbery and one count of conspiracy to commit
robbery. And the State and defense counsel addressed all four counts in their
opening and closing arguments. The jury found Gibson guilty as charged on all
four counts, but the trial court entered judgment of conviction only on one
count of robbery, as a Level 3 felony, and conspiracy to commit robbery, as a
Level 3 felony. The court then sentenced Gibson to fourteen years for robbery
and three years for conspiracy to commit robbery, and the court ordered those
sentences to be executed and to run consecutively. This appeal ensued.
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Discussion and Decision
Issue One: Conspiracy to Commit Robbery
[9] Gibson first contends that, because the State’s amended information filed in
January 2018 only referenced the three robbery counts, “he was not charged
with [conspiracy to commit robbery] at the time he went to trial” and his
conviction on that count “must be vacated.” Appellant’s Br. at 12. He
maintains that he “cannot be convicted of a crime for which he was not charged
by the State of Indiana and it would be fundamental error to do so.” Id. But
the State points out that it did not dismiss the conspiracy to commit robbery
charge by its January 2018 amendment, so it was still a “live” charge at the time
of trial. We agree with the State.
[10] “In every criminal case, an accused is entitled to clear notice of the charge or
charges against which the State summons him to defend.” Wright v. State, 658
N.E.2d 563, 565 (Ind. 1995) (citing Ind. Const. art 1, § 13). “Clear notice
serves the dual purposes of allowing an accused to prepare his defense and of
protecting him from being placed twice in jeopardy for the same offense.” Id.
Here, there is no dispute that the State charged Gibson with conspiracy to
commit robbery when it amended the information to add that charge in
December 2017, and there is no dispute that Gibson had prepared his defense to
that charge after clear notice of the charge. And at trial, Gibson argued the
conspiracy to commit robbery charge in opening and closing statements, and he
proffered a jury instruction on the conspiracy charge.
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[11] The only question on appeal is whether, when the State amended the
information a second time in January 2018, the conspiracy to commit robbery
charge was effectively dismissed or remained a “live” charge against Gibson.
We have found no statutory or case law indicating that where, as here, the State
amends some but not all charges in an information without any reference to
unamended charges previously filed, the amended information effectively
dismisses the previously charged but unamended counts. Rather, it appears
that an amended information revising fewer than all charges against a
defendant only supersedes the previous information as to the amended counts.
[12] We note that the better practice would be to include both the unamended
charges and the amended charges in a single, clean charging document before
the start of trial so as to avoid the type of confusion presented here. But there is
nothing that prohibits what the State did here. Indeed, when the State added
the fourth count, conspiracy to commit robbery, by amendment in December
2017, it included only that single count in the amended information. See
Appellant’s App. Vol. 2 at 35. Accordingly, when the State amended the three
robbery counts in January 2018 and included only those three counts in the
second amended information, that procedure was consistent with the manner in
which the State amended the information the first time. See id. at 41-42.
[13] In sum, under the facts and circumstances presented here, where Gibson was
clearly notified of the charge of conspiracy to commit robbery and prepared and
executed a defense to that charge at trial, and where the State did not dismiss
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the conspiracy charge prior to trial, the trial court’s entry of judgment of
conviction on that charge was not error, let alone fundamental error.
Issue Two: Inculpatory Statements
[14] Gibson next contends that the trial court abused its discretion when it admitted
into evidence his inculpatory statements to police. Gibson maintains that the
State did not “establish a corpus delicti” required to admit those statements at
trial. Appellant’s Br. at 14. We cannot agree.
[15] In Shinnock v. State, 76 N.E.3d 841, 843 (Ind. 2017), our Supreme Court
explained as follows:
In Indiana, a person may not be convicted of a crime based solely
on a nonjudicial confession of guilt. Green v. State, 159 Ind. App.
68, 304 N.E.2d 845, 848 (1973). Rather, independent proof of
the corpus delicti is required before the defendant may be
convicted upon a nonjudicial confession. Id. Proof of the corpus
delicti means “proof that the specific crime charged has actually
been committed by someone.” Walker v. State, 249 Ind. 551, 233
N.E.2d 483, 488 (1968). Thus, admission of a confession
requires some independent evidence of commission of the crime
charged. Workman v. State, 716 N.E.2d 445, 447 (Ind. 1999).
The independent evidence need not prove that a crime was
committed beyond a reasonable doubt, but merely provide an
inference that the crime charged was committed. Malinski v.
State, 794 N.E.2d 1071, 1086 (Ind. 2003). This inference may be
created by circumstantial evidence. Id.
The purpose of the corpus delicti rule is to prevent the admission of
a confession to a crime which never occurred. Hurt v. State, 570
N.E.2d 16, 19 (Ind. 1991). The State is not required to prove the
corpus delicti by independent evidence prior to the admission of a
confession, as long as the totality of independent evidence
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presented at trial establishes the corpus delicti. McManus v. State,
541 N.E.2d 538, 539-40 (Ind. 1989).
[16] Further, as the State points out,
the State’s case may be tested by reference to the corpus delicti in
two ways. For the preliminary purpose of determining whether
the confession is admissible, the State must present evidence
independent of the confession establishing that the specific crime
charged was committed by someone. The degree of proof
required to establish the corpus delicti for admission of a
confession is that amount which would justify the reasonable
inference that the specific criminal activity had occurred. It is not
necessary to make out a prima facie case as to each element of the
offense charged, and the corpus delicti may be shown by
circumstantial evidence.
On the other hand, in order to sustain a conviction the corpus
delicti must be proved beyond a reasonable doubt. In determining
the sufficiency of the evidence for conviction, the confession may
be considered along with the independent evidence.
Harkrader v. State, 553 N.E.2d 1231, 1232-33 (Ind. Ct. App. 1990) (citations
omitted).
[17] Here, we cannot discern whether Gibson is challenging one or both types of
corpus delicti requirements. In any event, in essence, Gibson contends that,
other than his inculpatory statements, there is no evidence that he had made an
agreement with Dove to commit the robbery to establish the conspiracy. But
T.O. testified that she saw Gibson helping another man steal televisions from
the house, and she saw both men going through her mother’s jewelry. Gibson
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and Dove worked together to commit the robbery, which is circumstantial
evidence to support a reasonable inference that they had made a plan before
they arrived to commit the robbery. See Hickman v. State, 654 N.E.2d 278, 283
(Ind. Ct. App. 1995) (holding corpus delicti for conspiracy to commit burglary
satisfied where circumstantial evidence showed defendant had committed
burglary with others’ help). We hold that the corpus delicti rule was satisfied
here. In particular, the trial court did not abuse its discretion when it admitted
into evidence Gibson’s inculpatory statements to police, and the evidence was
sufficient to support Gibson’s conviction for conspiracy to commit robbery.
Issue Three: T.O.’s Testimony
[18] Gibson contends that T.O., who was eight years old at the time of trial, was
“not a competent witness.” Appellant’s Br. at 17. Thus, he maintains that the
trial court abused its discretion when it allowed her to testify. But, while
Gibson initially questioned her competency, after the trial court conducted a
competency hearing and found her competent, Gibson made no objection to
her testimony.
[19] It is well settled that the failure to make a contemporaneous objection to the
admission of evidence at trial results in waiver of the error on appeal. Jackson v.
State, 735 N.E.2d 1146, 1152 (Ind. 2000). A contemporaneous objection
affords the trial court the opportunity to make a final ruling on the matter in the
context in which the evidence is introduced. Id. Gibson’s failure here results in
waiver of appellate review. See, e.g., Kochersperger v. State, 725 N.E.2d 918, 922
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(Ind. Ct. App. 2000) (holding defendant waived issue of child witness’
competency for failure to make contemporaneous objection).
Issue Four: Double Jeopardy
[20] Gibson contends that his convictions violate double jeopardy principles. He
maintains that, because “[t]here was no independent evidence of any agreement
between co-conspirators except Gibson’s statements[,]” there is a “reasonable
possibility that the jury relied on the same evidence to prove both the
conspiracy to commit robbery as to prove the robbery, namely: Gibson’s
statements.” Appellant’s Br. at 16. Gibson misunderstands the actual evidence
test under Article 1, Section 14 of the Indiana Constitution, and his contention
on this issue is without merit.
[21] Article 1, Section 14 of the Indiana Constitution states, “No person shall be put
in jeopardy twice for the same offense.” In Richardson v. State, 717 N.E.2d 32,
49 (Ind. 1999), our Supreme Court held that two or more offenses are the
“same offense” in violation of Article 1, Section 14 of the Indiana Constitution,
if, with respect to either the statutory elements of the challenged crimes or the
actual evidence used to convict, the essential elements of one challenged offense
also establish the essential elements of another challenged offense.
[22] Here, Gibson does not contend a violation under the statutory elements test.
Instead, he claims that his convictions constitute double jeopardy under the
actual evidence test. “The actual evidence test prohibits multiple convictions if
there is ‘a reasonable possibility that the evidentiary facts used by the fact-finder
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to establish the essential elements of one offense may also have been used to
establish the essential elements of a second challenged offense.’” Davis v. State,
770 N.E.2d 319, 323 (Ind. 2002) (quoting Richardson, 717 N.E.2d at 53). The
actual evidence test “is not violated when the evidentiary facts establishing the
essential elements of one offense also establish only one or even several, but not
all, of the essential elements of a second offense.” Spivey v. State, 761 N.E.2d
831, 833 (Ind. 2002).
[23] A “reasonable possibility” that the trier of fact used the same facts to reach two
convictions requires substantially more than a logical possibility. Lee v. State,
892 N.E.2d 1231, 1236 (Ind. 2008). “‘[R]easonable possibility’ turns on a
practical assessment of whether the jury may have latched on to exactly the
same facts for both convictions.” Id. Application of this test requires the court
to “identify the essential elements of each of the challenged crimes and to
evaluate the evidence from the jury’s perspective[.]” Spivey, 761 N.E.2d at 832.
In determining the facts used by the jury to establish the elements of each
offense, we consider the charging information, jury instructions, and arguments
of counsel. Lee, 892 N.E.2d at 1234; Spivey, 761 N.E.2d at 832; Richardson, 717
N.E.2d at 54 n.48.
[24] The State charged Gibson with robbery, as a Level 3 felony, as follows:
On or about May 30, 2017 in St. Joseph County, State of
Indiana, Jason Michael Gibson did knowingly aid, induce, or
cause another person or persons, including Deangelo Dove, to
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knowingly take property from another person or the presence of
another person, to-wit: T.O., by putting T.O. in fear, while
armed with a deadly weapon.
Appellant’s App. Vol. 2 at 41. And the State charged Gibson with conspiracy
to commit robbery as follows:
On or about May 30, 2017, in St. Joseph County, State of
Indiana, JASON MICHAEL GIBSON, with the intent to
commit the crime of Armed Robbery, did agree with one or more
other persons, including Deangelo Dove, to commit the crime of
Armed Robbery by knowingly taking property from the presence
of Tyshawn Owens by using or threatening the use of force while
armed with a deadly weapon, and that one or more of those
other persons did commit an overt act in furtherance of the
agreement.
Id. at 35.
[25] At trial, the court instructed the jury in relevant part that the State had to prove
beyond a reasonable doubt that either Gibson or Dove committed the overt act
of entering Peck’s residence in furtherance of their agreement to prove
conspiracy. And in its closing argument, the State directed the jury to the
evidence that Dove entered the residence to prove the overt act in support of the
conspiracy charge. That evidence has no relation to the evidence supporting
the robbery charge, which required only proof that Gibson aided Dove in
stealing items from the presence of T.O., which T.O.’s testimony supports. In
short, considering the charging information, jury instructions, and arguments of
counsel there is no reasonable possibility that the jury used the evidence proving
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the elements of robbery to also establish the elements of conspiracy to commit
robbery. We hold that Gibson’s convictions do not violate double jeopardy
principles.
Issue Five: Sentencing
[26] Finally, Gibson contends that the trial court abused its discretion when it
sentenced him. As our Supreme Court has explained,
sentencing decisions rest within the sound discretion of the trial
court and are reviewed on appeal only for an abuse of
discretion. . . . So long as the sentence is within the statutory
range, it is subject to review only for abuse of discretion. . . . An
abuse of discretion occurs if the decision is clearly against the
logic and effect of the facts and circumstances before the court, or
the reasonable, probable, and actual deductions to be drawn
therefrom.
One way in which a trial court may abuse its discretion is failing
to enter a sentencing statement at all. Other examples include
entering a sentencing statement that explains reasons for
imposing a sentence—including a finding of aggravating and
mitigating factors if any—but the record does not support the
reasons, or the sentencing statement omits reasons that are clearly
supported by the record and advanced for consideration, or the reasons
given are improper as a matter of law. Under those
circumstances, remand for resentencing may be the appropriate
remedy if we cannot say with confidence that the trial court
would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.
Anglemyer v. State, 868 N.E.2d 482, 490-91 (Ind. 2007) (emphasis added) (some
citations and quotation marks omitted), clarified on reh’g, 875 N.E.2d 218 (2007).
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[27] Gibson maintains that “the trial court failed to recognize mitigating factors
clearly advanced for consideration[,]” namely, his youth, his cooperation with
police in this case, his remorse, his desire to “repay the victims for the property
taken,” and the undue hardship his incarceration will pose on his daughter.
Appellant’s Br. at 19-20. However, it is well settled that a trial court does not
abuse its discretion if it does not consider a mitigating factor that a defendant
does not raise at sentencing. Anglemyer, 868 N.E.2d at 492. The State points
out that Gibson did not proffer to the trial court any of the mitigators he
outlines in his brief on appeal.
[28] In any event, at sentencing the trial court considered Gibson’s youth and
remorse, but declined to give them any mitigating weight. It is well settled that
a trial court is under no obligation to explain why a proposed mitigator does not
exist or why the court found it to be insignificant. Sandleben v. State, 22 N.E.3d
782, 796 (Ind. Ct. App. 2014), trans. denied. Gibson has not shown that the trial
court abused its discretion when it sentenced him. Id.
[29] Affirmed.
Crone, J., and Pyle, J., concur.
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